PELLEGRINO FOOD PRODUCTS v. VALLEY VOICE

875 A.2d 1161

PELLEGRINO FOOD PRODUCTS CO., INC. and Anthony J. Pellegrino, Sr., an Individual, Appellants v. THE VALLEY VOICE, Sue Curtin, an Individual, Tom Curtin, an Individual, Appellees and PELLEGRINO FOOD PRODUCTS CO., INC. and Anthony J. Pellegrino, Sr., an Individual, Appellants. v. Susan R. CURTIN, d/b/a Valley Publishing Company, Appellees.

Superior Court of Pennsylvania.

Argued February 8, 2005.

Filed May 23, 2005.

Jason C. Tetlow, Pittsburgh, for appellant.

Barbara C. Litten, Tionesta, for appellees.

Before: DEL SOLE, P.J., JOYCE and TAMILIA, JJ.

OPINION BY DEL SOLE, P.J.:

¶ 1 This is an appeal from an order granting Appellees' Petition for Award of Attorney's Fees filed pursuant to 42 Pa.C.S.A. § 2503(9). The award was based on the trial court's conclusion that Appellants' earlier conduct in bringing two actions against Appellees was vexatious. Our review of the matter does not support the trial court's conclusion, and we reverse its order and vacate its award.

¶ 2 The grant of Appellees' request for attorney fees was made after two suits were filed by Appellants Pellegrino Food Products and its C.E.O. Anthony Pellegrino, Sr. alleging they had been defamed in articles published in the local paper, The Valley Voice, which was owned and operated by Appellee Susan R. Curtin.¹ The trial court found that Appellants' later voluntary discontinuance of these actions, and its failure to produce evidence to substantiate its claim of damages, demonstrated that the actions were brought without sufficient grounds in either law or fact and with the sole purpose of causing annoyance, and thus were vexatious.

¶ 3 At issue were statements made in a column which reported on a meeting of the Mead Township Supervisors. Challenged were the statements that "Pellegrino Foods added a loading dock to its facility on Fullerton Road without benefit of a building permit," and "[b]ecause of the installation of the illegal structure the cost of the sewage line installation on Fullerton Road was more difficult and expensive." Appellants claimed that these statements were made without investigating the ownership of the property and an investigation would have revealed that neither Anthony Pellegrino nor Pellegrino Foods owns the property; rather, it is owned by Thomas and Sally Pellegrino.

¶ 4 Appellants further challenged the following published statement: "Pellegrino has been notified of the infractions and has responded with the statement, `Prove it!"' Appellants claimed that this statement was an embellishment made by Mrs. Curtin.

¶ 5 Following the filing of Appellants' first action, Appellees answered and in new matter raised the defense of fair comment and privilege. A summary judgment motion was later filed, but before it was resolved Appellants voluntarily discontinued their case. A second complaint was filed shortly thereafter. It named only Susan R. Curtin, d/b/a Valley Publishing Company as a defendant and in addition to a claim of libel, Appellants added additional causes of action for intentional infliction of emotional distress and false light/invasion of privacy. These additional causes of action were stricken by the trial court following the filing of preliminary objections. Interrogatories and a Request of Production of Documents were served on Appellants. When they failed to timely respond, Mrs. Curtin filed a motion to compel. A response was then filed, but Mrs. Curtin, alleging it was incomplete, filed a second motion to compel. Before argument was held on the motions, Appellants filed a praecipe for discontinuance of the matter and it was discontinued with prejudice.² Appellees' petition for the award of attorney fees followed.

¶ 6 Appellees' petition sought fees under 42 Pa.C.S.A. § 2503(9). It provides:

The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:

...

(9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.

The trial court in this case ruled that Appellants did not institute the underlying actions in an arbitrary manner or in bad faith; however, it did find Appellants' conduct was vexatious.

¶ 7 A suit is vexatious so as to support an award of attorney fees if it is filed without sufficient legal or factual grounds and if the suit was served with the sole purpose of causing annoyance. Berg v. Georgetown Builders, Inc., 822 A.2d 810 (Pa.Super.2003). The underlying suit filed by Appellants sought damages as a result of what they alleged were defamatory statements contained in Appellees' published newspaper article.

¶ 8 "Libel is the malicious publication of printed or written matter which tends to blacken a person's reputation and expose him to public hatred, contempt or ridicule." Tucker v. Philadelphia Daily News, 577 Pa. 598, 848 A.2d 113, 124 (2004) (quoting Schnabel v. Meredith, 378 Pa. 609, 107 A.2d 860, 862 (1954)). A communication is defamatory if it tends to harm the reputation of another as to lower that person in the estimation of the community or to deter third persons from associating or dealing with that person. Maier v. Maretti, 448 Pa.Super. 276, 671 A.2d 701, 704 (1995). A communication is also defamatory if it ascribes to another conduct, character or a condition that would adversely affect that person's fitness for the proper conduct of their business, trade or profession. Constantino v. University of Pittsburgh, 766 A.2d 1265, 1270 (Pa.Super.2001). In an action for defamation, a "plaintiff must prove: (1) the defamatory character of the communication; (2) publication by the defendant; (3) its application to the plaintiff; (4) understanding by the recipient of its defamatory meaning; (5) understanding by the recipient of it as intended to be applied to plaintiff; (6) special harm to the plaintiff; and (7) abuse of a conditionally privileged occasion." Maier, 671 A.2d at 704.

¶ 9 In Pennsylvania, the fair report privilege protects the press from liability for the publication of defamatory material if the published material constitutes a fair and accurate report of an official governmental action or proceeding. DeMary v. Latrobe Printing & Publishing Co., 762 A.2d 758, 762 (Pa.Super.2000). This qualified immunity will be forfeited whenever the publisher steps out of the scope of the privilege by making exaggerated additions, or embellishments to the account. Id.

¶ 10 In this instance, Appellants' claim was based on a published article which covered an official local governmental proceeding. Appellants alleged, however, that the article contained inaccuracies, in that it reported Appellants were the persons responsible for failing to procure a proper permit before building a loading dock onto a building and that this action caused increased sewage line charges for the adjacent roadway. Appellants assert that they were not owners of the property in question and that Appellees were negligent in not ascertaining the name of the correct owner of the property before publishing the article.

¶ 11 Appellants also point to the statement in the article which provides that "Pellegrino" was notified of the infraction, and responded "with the statement, `Prove it!'" Appellants claim no such statement could be attributed to them.

¶ 12 With regard to these particular statements the trial court found that they were written by Mrs. Curtin based on what she knew to be the truth from what she heard at the meeting and from questioning of the supervisors. Appellees in their brief also contend that Mrs. Curtin published the articles only after verifying the facts of the articles with the Mead Township Supervisors and the township's solicitor. Appellees' Brief at 7. However, Mrs. Curtin's own deposition testimony belies this fact. Regarding ownership of the building, Mrs. Curtain repeatedly stated that during the meeting in question and in her later discussions it was only referred to as the "Pellegrino building." Deposition of Susan Curtin, 2/13/02, at 22. Mrs. Curtin also acknowledged that two of the supervisors told her "it was the Pellegrino building and it was utilized by Pellegrino Foods." Id. at 23. Thus, contrary to Appellees' assertions and the trial court's findings, Mrs. Curtin was never told that Pellegrino Foods was the party responsible for adding an unauthorized loading dock to its property.

¶ 13 Mrs. Curtin was also questioned in her deposition about the quotation contained in her article in which "Pellegrino" responded with "the statement," "Prove it!" when questioned about the matter. Mrs. Curtin acknowledged that she was told by supervisors who attended the meeting:

They noted at the end of the hearing that they were found in violation of the two items that I stated in this article and the attitude was: Prove it to us.

Mrs. Curtin was further questioned:

Q. Just so I am clear, that was the general attitude to whoever the representative was at that—

A. Correct.

Q. You don't know whether it was a specific quote?

A. No.

Id. at 28-29.

¶ 14 Thus, contrary to Appellees' contentions and the trial court's findings, it cannot be found that Mrs. Curtin published her article based on information she knew to be true. She acknowledged that the building was only referred to at the meeting as the "Pellegrino building" which was used by Pellegrino Foods, yet she wrote that "Pellegrino Foods" added the loading dock to its facility without a proper permit. A simple check of ownership would have clarified this error. Even more glaring, however, is Mrs. Curtin's acknowledgment that the quote she attributed to a Pellegrino official was never uttered. Rather, Mrs. Curtin was told about a general "attitude" which was conveyed.

¶ 15 Given Mrs. Curtin's inaccuracies and clear embellishments of the events which occurred at the meeting, it cannot be said that Appellants were vexatious in bringing suit against Appe...